IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.543 of 2024

CNR No. BRHC010765532024

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Natwar Nagar Khan, S/o Sri Govind Prasad Khan, Resident of Village-

Bangaon, P.S.- Bangaon, Dist- Saharsa, Bihar.

... ... Appellant/s

Versus

Nikki Kumari, Daughter of Sri Santosh Mishra, Wife of Natwar Nagar Khan,

Presently Residing in Village- Bangaon, P.S.- Bangaon, Dist- Saharsa

... ... Respondent/s

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Appearance :

For the Appellant/s: Mr. Surendra Kumar Singh, Adv.

For the Respondent/s: Mr. Pramod Mishra, Adv.

======================================================

CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI

and

HONOURABLE MR. JUSTICE RANA VIKRAM SINGH

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE RANA VIKRAM SINGH)

Date : 08-10-2026

The present miscellaneous appeal has been

preferred by the appellant under section 19(i) of the Family

Courts Act, 1984 against the judgment dated 06.06.2024 passed

by the learned Principal Judge, Family Court, Saharsa in

Divorce Case No. 26 of 2020, whereby the petition for

dissolution of marriage filed by the appellant was dismissed.

2. The appellant husband instituted a Divorce Case

No. 26 of 2020 on 04.12.2020, in the Court of Principal Judge,

Family Court, Saharsa seeking dissolution of marriage

principally on the grounds of cruelty and desertion.

3. The case of the appellant is that his marriage

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with the respondent was solemnized on 21.02.2019 according to

Hindu religious rites and customs at Bangaon. The parties are

Hindus and their matrimonial relationship is governed by the

provisions of the Hindu Marriage Act, 1955. The appellant has

stated that he was working as an Assistant to Director in

regional/Bhojpuri films at Mumbai. A male child, namely,

Krishna Katyayan, was born out of the wedlock.

The allegation of cruelty is not an incidental

allegation in the petition; rather, it constitutes one of the specific

grounds on which dissolution of marriage was sought.

4. The appellant alleged that the respondent wife

frequently quarreled with him and with his aged parents and

used abusive and insulting language against them. It was further

alleged that on certain occasions she misbehaved with and

assaulted his parents. The appellant also alleged that the money

which he used to provide for the maintenance of the family was

being spent by the respondent upon herself and/or being given

to her parents.

5. It is further stated that the respondent insisted

that the appellant should live separately from his parents and

pressurized him to establish a separate matrimonial household.

According to the appellant, such conduct caused serious

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matrimonial discord.

6. The appellant further pleaded that the respondent

left the matrimonial home on 01.07.2020 along with her parents,

uncle and brother taking her belongings and ornaments with her.

He and his relatives made efforts to persuade her to return to the

matrimonial home, but she refused to do so.

7. The father and brothers of the respondent wife

misbehaved with the appellant and prevented him from meeting

the minor child. The appellant further alleged that the

respondent and her family insisted him to become a “Ghar

Jamai” which he refused.

8. In order to substantiate the ground of cruelty the

appellant husband has relied on paragraph nos. 4, 5, 6 and 7 of

the plaint wherein a specific case, the appellant has attempted to

made out, with respect to the cruelty meted to him by stating:-

i) The respondent wife insisted upon him to

stay with her at her maika;

ii) The respondent wife started quarreling

with the parents and family members of the

appellant and putting pressure for having

share in the property;

iii) The money sent by the appellant for

upkeep and maintenance of the family was

spent by respondent wife at her own will

without taking care of his parents.

iv) The wife left the matrimonial home on

01.07.2020 for her parental home alongwith

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her parents, uncle and brother and at that

time she carried away all her belongings

including ornaments and clothes and in-spite

of best efforts of the appellant husband, he

was not allowed to meet his son.

9. In order to substantiate the ground of desertion,

the appellant has stated in paragraph no. 7 of the plaint that on

01.07.2020 she deserted her matrimonial home. Thereafter, in-

spite of repeated and incessant efforts by the appellant, she was

not ready to come back and she also blocked cell number of the

appellant by putting it in blocklist.

10. The respondent wife in her written statement

filed in the Court of learned Principal Judge, Family Court,

Saharsa has categorically denied all the allegations of cruelty

and desertion by stating that it was the appellant husband who

neglected to take care of her and her son. On account of the

callous and indifferent approach of the appellant husband, the

respondent had to file a maintenance case in the Court of

learned Principal Judge, Family Court, Saharsa vide

Maintenance Case No. 34 of 2021 wherein an order was passed

to make payment of Rs. 6,000/- per month from the date of

filing of the application, but respondent has failed to pay any

maintenance amount.

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11. It has been asserted by the respondent wife that

she always took good care of her parents-in-law and accorded

proper respect to them, but it was the appellant husband who

had greedy eyes on her property, so he pressurized, incessantly,

her to demand further money from her father and on her refusal

to do so, she was variously tortured.

12. It has also been stated that the appellant works

as Assistant to the Director in Regional/Bhojpuri films and earns

a handsome amount, but he completely and deliberately ignored

her and her child and thus, failed in his duty as husband and

father. At last the respondent wife has categorically stated that

she has always been ready and willing to live with the appellant

husband, provided he keeps her and her son with all dignity,

care, affection and love and the averments made in the

application filed for dissolution of marriage, is patently false

and far from the truth and it is simply an outcome of a

mischievous mind, who in order to make out the case, has

concocted a false story by levelling frivolous allegations.

13. The learned Principal Judge, Family Court,

Saharsa after having framed the issues, recorded the cross-

examination of witnesses produced on behalf of the rival parties

and having considered and appreciated the same vide judgment

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and decree dated 06.06.2024 and 14.06.2024 respectively,

dismissed the suit for dissolution of marriage, holding therein

that the appellant has failed to prove the ground of cruelty and

desertion.

14. Hence, the present appeal has been preferred

assailing the judgment and decree dated 06.06.2024 and

14.06.2024 passed by learned Principal Judge, Family Court,

Saharsa.

15. Heard rival submissions on behalf of the parties

and perused the evidence and judgment which has been brought

on record as well as the grounds of appeal assailing the order

impugned.

16. Having given thoughtful consideration to the

rival submissions, grounds and documents brought on record in

support of the ground as well as the findings recorded by the

learned Principal Judge, Family Court, Saharsa, we are of the

considered view that the primordial and knotty issue, which

requires determination, could be summed-up as follows:-

i) Whether the appellant has been able to

prove the ground of cruelty in terms of

Section 13(1)(i-a).

ii) What would amount to cruelty, though not

defined under the Section 13(1)(i-a) of the

Hindu Marriage Act, but authoritative

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judicial pronouncements has set out certain

parameters defining the term ‘Cruelty’ and

whether such ingredients and parameters

are satisfied in the case at hand.

iii) Whether the claim of ‘Desertion’ , as has

been raised by the appellant, is maintainable

and could the wife be held to have deserted

her husband in the factual conspectus of the

case at hand.

Chapter IV of the Hindu Marriage Act, 1955 (in

short referred to as “Act”) contains the provisions with respect

to nullity of marriage and divorce which ranges from Section 11

to 18 of the Act.

17. Section 13 specifies the grounds on which a

decree for dissolution of marriage may be obtained by either

party to the marriage. Section 13(1)(i-a) and 13(1)(i-b) lays

down the grounds for divorce in the following words:-

“(i-a) has, after the solemnization of the

marriage, treated the petitioner with

cruelty”

“(i-b) has deserted the petitioner for a

continuous period of not less than two years

immediately preceding the presentation of

the petition”

18. Section 13(1)(i-a) does not define what the term

“cruelty” would mean. The legal concept of cruelty has varied

from time to time and from society to society. In early English

law, intention was considered to be an essential element of

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cruelty, but in modern law it is no longer so. The modern law

takes the view that the objective is to accord protection to the

innocent party. Denning, L.J has warned that :-

“if the doors of cruelty were opened too

wide, we should soon find ourselves granting

divorce for incompatibility of temperament”.

He further warned that “the temptation must

be resisted lest we slip into a state of affairs

where the institution of marriage itself is

imperilled”.

19. Normal wear and tear of marital life, nagging

and scolding and even incompatibility of temperament could not

be bracketed within the category of cruelty. These are the

normal wear and tear of matrimonial life.

20. Cruelty cannot be defined in a straight jacket

formula, but it has to be measured and gathered from

circumstances, situations and surroundings within which one is

placed and treated accordingly. Thus, there cannot be any water

tight compartment defining the term cruelty.

21. Cruelty as a concept defies definition, but it can

be judged after taking into account all the facts and

circumstances of the case and cannot be determined by fixed

rigid formula.

22. In Russell vs. Russell, reported in (1897) AC

395, the starting point of definition of cruelty has been given

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as :-

“Conduct of such a character as to have

caused danger to life, limb or health, bodily

or mental, or as to give rise to a reasonable

apprehension of such danger”.

23. Under the Modern Hindu law, cruelty is a

ground both for judicial separation and divorce. The Marriage

Law (Amendment) Act, 1976 which makes cruelty a ground for

divorce, has changed the wording of the clause thus:

“respondent has treated the petitioner with cruelty”. This

change in definition of cruelty post 1976 signifies that an act or

omission or conduct which constitutes cruelty as the ground for

divorce or judicial separation even if it causes no apprehension

of any sort in the mind of the parties.

24. In the case of G.V.N. Kameswara Rao vs. G.

Jalili reported in (2002) 2 SCC 296, the Supreme Court has

held that the expression cruelty has been used in relation to

human conduct or human behavior. To constitute cruelty the

conduct that is complained against should be grave and weighty

for arriving at the conclusion that the party cannot be reasonably

expected to live with the other spouse.

25. Likewise in Naveen Kohli vs. Neelu Kohli

reported in (2006) 4 SCC 558, the Hon’ble Supreme Court has

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observed that “the conduct complained of should be grave and

weighty. It should be such that no reasonable person shall

tolerate it. It should not be ordinary wear and tear of

marriage”.

26. A conduct cannot always be called cruel. A

person who complains of cruelty has to make out a specific case

that a particular conduct amounts to cruelty. In A. Jaya

Chandra vs. Aneel Kaur reported in (2005) 2 SCC 22, the

Hon’ble Supreme Court has observed that :-

“expression ‘cruelty’ has been used in

relation to human conduct or human

behavior to constitute cruelty. The conduct

complained of should be grave and weighty

for arriving at a conclusion that

person/spouse cannot be reasonably

expected to live with the other spouse”.

27. Cruelty has been classified into two

categories :-

a) Physical Cruelty; and

b) Mental Cruelty.

Acts of physical violence by one spouse to another

causing injury to body, limb or health or causing reasonable

apprehension could be held to be cruelty. It is not necessary to

prove actual danger to life, apprehension of the same is enough.

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Even one or two acts of physical violence are sufficient to

constitute cruelty, but not an isolated instance.

28. Whereas mental cruelty has been defined by

Supreme Court in V. Bhagat vs. D. Bhagat reported in (1994) 1

SCC 337 that :-

“a conduct which inflicts upon the other

party, such mental pain and sufferings as

would make it not possible for that party to

live with the other. In other words, mental

cruelty would be of such a magnitude of

such a nature that parties cannot reasonably

be expected to live together”.

To judge mental cruelty, the Court has to go by

“intensity, gravity and stigmatic impact” of cruel treatment,

even if such cruel treatment is meted out once. (Vijay Kumar

Ramchandra Bhate vs. Neela Bhate, reported in AIR 2003 SC

2462).

29. Further the mental cruelty has been defined as a

state of mind and feeling which is a matter of inference and such

inference has to be drawn on facts and circumstances taken

cumulatively. Wilful and unjustifiable interference by ones

spouse in the sphere of life of another is one species of cruelty

in the same manner as rough or domineering or unnatural

conduct.

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30. However, outburst of temper without rancour,

non-payment of interim maintenance or desertion per se, does

not amount to cruelty. Mere domestic quarrels on account of the

presence of mother-in-law in the family would also not

constitute mental cruelty (Yashoda Bai vs. Krishnamoorthy

Bhimappa Katavkar reported in AIR 1992 Karnataka 368).

Similarly mere misbehavior with parents of husband and other

relations does not amount to cruelty (Smt. Renu vs. Sanjai

Singh reported in 2000 SCC Online All. 87).

31. The Hon'ble Supreme Court in the matter of

Savitri Pandey Vs. Prem Chandra Pandey reported in (2002) 2

SCC 73, observed in paras 6 of its judgment as under:

“6. Treating the petitioner with cruelty is a

ground for divorce under Section 13(1)(i-a) of

the Act. Cruelty has not been defined under the

Act but in relation to matrimonial matters it is

contemplated as a conduct of such type which

endangers the living of the petitioner with the

respondent. Cruelty consists of acts which are

dangerous to life, limb or health. Cruelty for the

purpose of the Act means where one spouse has

so treated the other and manifested such

feelings towards her or him as to have inflicted

bodily injury, or to have caused reasonable

apprehension of bodily injury, suffering or to

have injured health. Cruelty may be physical or

mental. Mental cruelty is the conduct of other

spouse which causes mental suffering or fear to

the matrimonial life of the other. "Cruelty",

therefore, postulates a treatment of the

petitioner with such cruelty as to cause a

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reasonable apprehension in his or her mind that

it would be harmful or injurious for the

petitioner to live with the other party. Cruelty,

however, has to be distinguished from the

ordinary wear and tear of family life. It cannot

be decided on the basis of the sensitivity of the

petitioner and has to be adjudged on the basis

of the course of conduct which would, in

general, be dangerous for a spouse to live with

the other. In the instant case both the trial court

as well as the High Court have found on facts

that the wife had failed to prove the allegations

of cruelty attributed to the respondent.

Concurrent findings of fact arrived at by the

courts cannot be disturbed by this Court in

exercise of powers under Article 136 of the

Constitution of India. Otherwise also the

averments made in the petition and the evidence

led in support thereof clearly show that the

allegations, even if held to have been proved,

would only show the sensitivity of the appellant

with respect to the conduct of the respondent

which cannot be termed more than ordinary

wear and tear of the family life”.

32. In Samar Ghosh vs. Jaya Ghosh reported in

2007 (4) SCC 511 the Hon’ble Supreme Court has held :-

“…… 98. On proper analysis and scrutiny of

the judgments of this Court and other courts,

we have come to the definite conclusion that

there cannot be any comprehensive

definition of the concept of “mental cruelty”

within which all kinds of cases of mental

cruelty can be covered. No court in our

considered view should even attempt to give

a comprehensive definition of mental cruelty.

99. Human mind is extremely complex and

human behaviour is equally complicated.

Similarly human ingenuity has no bound,

therefore, to assimilate the entire human

behaviour in one definition is almost

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impossible. What is cruelty in one case may

not amount to cruelty in other case. The

concept of cruelty differs from person to

person depending upon his upbringing, level

of sensitivity, educational, family and

cultural background, financial position,

social status, customs, traditions, religious

beliefs, human values and their value

system.

101. No uniform standard can ever be laid

down for guidance, yet we deem it

appropriate to enumerate some instances of

human behaviour which may be relevant in

dealing with the cases of “mental cruelty”.

The instances indicated in the succeeding

paragraphs are only illustrative and not

exhaustive:

(i) On consideration of complete

matrimonial life of the parties, acute mental

pain, agony and suffering as would not make

possible for the parties to live with each

other could come within the broad

parameters of mental cruelty.

(ii) On comprehensive appraisal of the

entire matrimonial life of the parties, it

becomes abundantly clear that situation is

such that the wronged party cannot

reasonably be asked to put up with such

conduct and continue to live with other

party.

(iii) Mere coldness or lack of affection

cannot amount to cruelty, frequent rudeness

of language, petulance of manner,

indifference and neglect may reach such a

degree that it makes the married life for the

other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The

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feeling of deep anguish, disappointment,

frustration in one spouse caused by the

conduct of other for a long time may lead to

mental cruelty.

(v) A sustained course of abusive and

humiliating treatment calculated to torture,

discommode or render miserable life of the

spouse.

(vi) Sustained unjustifiable conduct and

behaviour of one spouse actually affecting

physical and mental health of the other

spouse. The treatment complained of and the

resultant danger or apprehension must be

very grave, substantial and weighty.

(vii) Sustained reprehensible conduct,

studied neglect, indifference or total

departure from the normal standard of

conjugal kindness causing injury to mental

health or deriving sadistic pleasure can also

amount to mental cruelty.

(viii) The conduct must be much more

than jealousy, selfishness, possessiveness,

which causes unhappiness and

dissatisfaction and emotional upset may not

be a ground for grant of divorce on the

ground of mental cruelty.

(ix) Mere trivial irritations, quarrels,

normal wear and tear of the married life

which happens in day-to-day life would not

be adequate for grant of divorce on the

ground of mental cruelty.

(x) The married life should be reviewed

as a whole and a few isolated instances over

a period of years will not amount to cruelty.

The ill conduct must be persistent for a fairly

lengthy period, where the relationship has

deteriorated to an extent that because of the

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acts and behaviour of a spouse, the wronged

party finds it extremely difficult to live with

the other party any longer, may amount to

mental cruelty.

(xi) If a husband submits himself for an

operation of sterilisation without medical

reasons and without the consent or

knowledge of his wife and similarly, if the

wife undergoes vasectomy or abortion

without medical reason or without the

consent or knowledge of her husband, such

an act of the spouse may lead to mental

cruelty.

(xii) Unilateral decision of refusal to

have intercourse for considerable period

without there being any physical incapacity

or valid reason may amount to mental

cruelty.

(xiii) Unilateral decision of either

husband or wife after marriage not to have

child from the marriage may amount to

cruelty.

(xiv) Where there has been a long period

of continuous separation, it may fairly be

concluded that the matrimonial bond is

beyond repair. The marriage becomes a

fiction though supported by a legal tie. By

refusing to sever that tie, the law in such

cases, does not serve the sanctity of

marriage; on the contrary, it shows scant

regard for the feelings and emotions of the

parties. In such like situations, it may lead to

mental cruelty.”

33. In this backdrop of the legal discussions which

authoritatively define and enunciate the law with respect to

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cruelty as a ground seeking dissolution of marriage, if we

examine the case, at hand, in order to have succinct and

punctilious analysis of the case, we come to a definitive and

conclusive finding that the instant case does not come within the

ambit and parameters of cruelty, so as to make it a ground for

dissolution of marriage.

34. The learned Family Court considered the

pleadings and evidence led by the parties and did not find the

allegations made by the appellant sufficient to establish the

grounds pleaded for dissolution of marriage.

35. So far as the allegation concerning money

allegedly provided by the appellant to the respondent for family

maintenance and allegedly diverted by her to her parents is

concerned, the learned Family Court noticed the statement of

the appellant in cross-examination.

36. The relevant observation of the learned Family

Court, as appearing in the impugned judgment, reads:

“

वादी ने अपने प्रततपरीकण के पैरा

-33

मे कथन तकया है

तक वह अपनी पतनी के बैक खाते मे अथवा मनीआररर से

कभी पैसा नहीं तदया। वादी का कथन है तक वह अपनी

”

पतनी को हाथ पर पैसा देता था।

The learned Family Court thereafter observed:

“

इससे यह सपषट होता है तक वादी प्रततवातदनी के भरण

-

पोषण के तलए पैसा नहीं तदया है

,

और वादी का यह

आरोप तक प्रततवातदनी उसके दारा तदये गये पैसा अपने

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माता-

तपता को देती थी

, ”

सातबत नहीं हो सका है।

The aforesaid finding is material because one of the principal

allegations relied upon by the appellant in support of his plea of

cruelty was that the respondent has misused the money

allegedly provided by him for the family and had given the

same to her parents. The learned Family Court found that this

allegation had not been established from the evidence.

37. In the present case, the appellant has

undoubtedly made several allegations which, according to him,

constituted cruelty. The allegations include quarreling with and

abusing his aged parents, alleged misbehavior with them,

alleged demand that the appellant should live separately from

his parents, alleged misuse of money, leaving the matrimonial

home, refusal to return despite efforts, and alleged interference

by the respondent’s family members in the appellant’s access to

the minor child. The appellant has also specifically described

the respondent’s conduct as constituting an “extreme degree of

cruelty”.

38. However, merely because cruelty has been

pleaded does not mean that the matrimonial relief necessarily

follows. The pleaded acts have to be considered in the light of

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the evidence available on record.

39. The learned Family Court considered the

evidence and, particularly, found that the allegation concerning

diversion of money by the respondent to her parents was not

proved. The appellant himself stated in cross-examination that

he had never deposited money in the respondent’s bank account

or sent money to her through money order and stated that he

used to give money to her by hand. The learned Family Court

therefore found the allegation regarding diversion of money to

the respondent’s parents to be not proved.

40. The remaining allegations regarding quarrels,

alleged abuse of the appellant’s parents, insistence upon

separate residence and other matrimonial discord were also

matters which were disputed by the respondent. The respondent,

on the other hand, attributed the matrimonial discord to dowry

demands and ill-treatment at the matrimonial home.

41. The respondent has further relied upon the

maintenance proceeding and the order dated 07.06.2023 passed

in Maintenance Case No. 34 of 2021, whereby maintenance of

Rs.4,000/- per month was awarded to the wife and Rs.2,000/-

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per month to the minor child, totaling Rs.6,000/- per month

from 03.03.2021.

42. The existence of the said maintenance order is

relevant as part of the matrimonial history between the parties.

However, the said proceeding cannot by itself determine

whether the appellant has established cruelty under Section

13(1)(ia) of the Hindu Marriage Act or desertion under Section

13(1)(ib) of the Hindu Marriage Act. Those grounds have to be

examined on the pleadings and evidence available in the

matrimonial proceeding.

43. Likewise, the pendency/existence of the

criminal complaint referred to by the respondent does not, by

itself, establish the respondent’s allegations of cruelty unless the

same are otherwise proved in accordance with law.

44. On consideration of the entire material placed

before the Court, this Court finds no sufficient ground to hold

that the finding of the learned Family Court regarding failure of

the appellant to establish cruelty is perverse or unsupported by

the record.

45. The appellant was required to establish the

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ground pleaded by him through reliable evidence. The existence

of matrimonial discord or strained relations, by itself, cannot

dispense with the requirement of establishing the pleaded

conduct constituting cruelty.

46. Thus the issue that the respondent had treated

the appellant with cruelty, within the meaning of Section 13(1)

(i-a) of the Hindu Marriage Act, 1955 does not appear to be

established.

47. Accordingly, the finding of the learned Family

Court on the plea of cruelty does not call for interference.

48. Hence, the issues so framed as issue no. (i) and

(ii) have accordingly been answered in the aforesaid terms as

well as negating the claim of the appellant husband seeking

dissolution of marriage on the ground of cruelty. To this extent

the findings recorded by learned Principal Judge, Family Court,

Saharsa does not warrant any interference by this Court.

49. Now coming to the issue of “Desertion”, the

term which has been laid down under Section 13(1)(i-b) as one

of the grounds for dissolution of marriage in the following

terms:-

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“(i-b) has deserted the petitioner for a

continuous period of not less than two years

immediately preceding the presentation of

the petition”

50. Sine-qua-non for seeking dissolution of

marriage on the ground of desertion is Animus Deserendi, a latin

legal phrase, which means the intention to desert or permanently

bring cohabitation and marital life to an end. But, this animus

deserendi comes to an end the moment animus revertendi comes

into play, a latin legal phrase, which means “with the intention

to return” or “offer of reconciliation”.

51. To constitute a ground for judicial separation or

divorce, desertion must be for the entire statutory period of two

years, preceding the date of presentation of the petition. It has

been said that desertion is a continuing offence; it is an inchoate

offence. This means that once desertion begins, it continues day

after day till it is brought to an end by the act or conduct of the

deserting party.

52. It also means that the offence of desertion is not

complete even if the period of two years is complete. It may still

be brought to an end by any act or conduct of the deserting

spouse. It becomes a complete offence only when the deserted

spouse files a petition for a matrimonial relief. But before filing

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the petition, if the respondent or the petitioner does something

which brings desertion to an end, petition cannot be maintained.

53. In Pramod Purshottam Patkar vs. Smt.

Vasundhara Pramod Patkar reported in AIR 1987 Bom 75, it

was held that desertion commenced from the date the wife gave

a notice of not returning to the matrimonial home.

54. Desertion as a ground for matrimonial relief

differs from other grounds, such as adultery or cruelty, in that

the offence founded on the cause of action of desertion is not

complete until the petition seeking relief is filed. Desertion is a

continuing offence.

55. This character and quality of desertion makes it

possible to bring the state of desertion to an end by some act or

conduct on the part of deserting spouse. It may be emphasized

that the state of desertion may be put to an end not merely

before the statutory period has run out, but also at any time,

before the presentation of the petition.

56. Desertion may come to an end in the following

ways:

(a) Resumption of cohabitation.

(b) Resumption of marital intercourse.

(c) Supervening animus revertendi, or offer of

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reconciliation.

a) Resumption of cohabitation :- If parties resume

cohabitation, at any time before the presentation of petition, the

desertion comes to an end. Resumption of cohabitation must be

by mutual consent of both parties and it should imply complete

reconciliation. Thus, if the deserting spouse comes and stays in

the matrimonial home for a couple of days without intending to

reconcile or resume cohabitation, it does not terminate

desertion. The desertion would come to an end only when he or

she goes to the matrimonial home mentally prepared to resume

cohabitation. In a simple language, it means living together as

husband and wife. If parties start living together, it is enough to

establish resumption of cohabitation. It is necessary to prove

that marital intercourse was also resumed.

The fact that wife came to live for one night in the

matrimonial home on husband's mother's death does not

terminate desertion.

b) Resumption of marital intercourse :-

Resumption of marital intercourse is an important aspect of

resumption of cohabitation. Sometimes resumption of marital

intercourse may terminate desertion. If resumption of marital

intercourse was a step towards the resumption of cohabitation, it

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will terminate desertion even if the deserted spouse backs out.

But, desertion cannot be put to an end by casual acts of

intercourse.

c) Supervening animus revertendi or offer of

reconciliation :- If the party in desertion expresses an intention

to return, this would amount to termination of desertion. Animus

revertendi means intention to return. Suppose, the deserting

spouse wants to terminate desertion by expressing a desire to

resume cohabitation, but the deserted spouse prevents the

coming back of the deserting spouse. In such a case desertion

comes to an end, and it may be that from that time onward it is

the deserted spouse who becomes a deserter. In fact, this was

what happened in Bipinchandra Jaisinghbai vs. Prabhavati

reported in AIR 1957 SC 176. The wife through her mother-in-

law expressed a desire to come back to the matrimonial home,

but the husband prevented her coming by sending a telegram.

57. Thus in order to establish the ground of

desertion as envisaged under Section 13(1)(i-b) of Hindu

Marriage Act coupled with explanation appended thereto, it is

required to establish that the deserting spouse has segregated

his/her marital relationship with deserted spouse, without any

just and reasonable cause as much as is staying separately for

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continuous period of not less than 2 years,immediately

preceding the presentation of divorce petition. Thus, as per law,

it is required to be established by the deserted spouse that:-

(i) deserting spouse is living separately

continuously for more than a period of two

years and

(ii) the intention of deserting spouse has

been to bring the marital

relationship/cohabitation, to an end

permanently i.e. animus deserendi.

58. In support of such legal requirement, judgment

of Hon'ble Supreme Court delivered in case of Dr.(Mrs.)

Malathi Ravi Vs. Dr. B.V. Ravi reported in (2014) 7 SCC 640

held that:-

“18. To appreciate the rivalised submissions

raised at the Bar, we have carefully perused the

petition and the evidence adduced by the parties

and the judgment of the Family Court and that

of the High Court. The plea that was raised for

grant of divorce was under Section 13(1)(i-b) of

the Act. It provides for grant of divorce on the

ground of desertion for a continuous period of

not less than two years immediately preceding

the presentation of the petition. The aforesaid

provision stipulates that a husband or wife

would be entitled to a dissolution of marriage by

decree of divorce if the other party has deserted

the party seeking the divorce for a continuous

period of not less than two years immediately

preceding the presentation of the petition.

Desertion, as a ground for divorce, was inserted

in Section 13 by Act 68 of 1976. Prior to the

amendment it was only a ground for judicial

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separation.”

59. Thus the statutory requirement is that the

respondent must have deserted the petitioner for a continuous

period of not less than two years immediately preceding the

presentation of the petition.

60. In the present case, according to the appellant’s

own pleading, the respondent left the matrimonial home on

01.07.2020, whereas the divorce petition was instituted on

04.12.2020.

61. Thus, even accepting the appellant’s pleaded

date of separation for the purpose of examining this ground, the

statutory period of two years had not elapsed on the date of

presentation of the divorce petition.

62. The expression “more than two years”

occurring in Ground No. 4 of the memorandum of appeal cannot

override the specific factual dates pleaded by the appellant

himself.

63. Consequently, the statutory requirement for a

decree of divorce on the ground of desertion was not satisfied.

64. Thus, issue no. (iii) as framed in paragraph no.

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16 is answered in the negative.

65. On an overall consideration of the pleadings,

evidence and findings recorded by the learned Family Court and

the precedents of Hon’ble Supreme Court, this Court finds that

though the appellant had specifically pleaded cruelty as well as

desertion for dissolution for marriage, but has miserably failed

to prove the same and as such the conclusion of the learned

Family Court, dismissing the divorce case of appellant does not

warrant any interference.

66. Thus the findings recorded by the learned

Principal Judge, Family Court, Saharsa, therefore, do as not

suffer from any such infirmity as would warrant appellate

interference.

67. Accordingly, the present Miscellaneous Appeal

is dismissed.

68. The judgment and decree dated 06.06.2024 and

14.06.2024 respectively passed by the learned Principal Judge,

Family Court, Saharsa in Divorce Case No. 26 of 2020, are

hereby affirmed.

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69. There shall be no order as to costs.

70. All pending interlocutory application(s), if any,

stands disposed off.

71. Let the lower court records, if received, be

transmitted back to the court concerned forthwith.

Supratim/-

(Rana Vikram Singh, J)

Bibek Chaudhuri, J : I agree

(Bibek Chaudhuri, J)

AFR/NAFR AFR

CAV DATE 28.09.2026

Uploading Date 08.10.2026

Transmission Date NA